Rule 96 | Partition of Real and Personal Property

First Adopted: June 10, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.01 | Right to Partition in General

Owners of interests in land in joint tenancy or tenancy in common, including estates in fee, for life, or for years, may bring an action for partition, if the same can be done without great prejudice to the parties in interest, and, if not, then for a sale of the property, and a division of the proceeds thereof.

Committee Note – 1981

This is substantially the same as prior Rule 96.01.


(Adopted June 10, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.02 | Service of Process

In partition actions service of process may be made as provided by Rule 54.

Committee Note – 1981

This is new.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.03 | Burdensome and Unprofitable Estates – Sale

Persons holding estates, or an interest in estates, in land for life or for years, carrying the right of immediate use and enjoyment therein may sue the owners of the remainder or reversion for sale of such land, or any of the same, upon the ground that the life or other estate of immediate enjoyment is burdensome and unprofitable because the cost of paying the taxes and assessments thereon and holding, maintaining, caring for and preserving the land from waste, or injury and deterioration, exceeds the reasonable value of the rents and profits thereof, and that a greater income can probably be had from proceeds of a sale thereof invested in bonds of the United States or of Missouri or of some municipality or school district thereof or first lien mortgage loans on land situated in this state. The sale of such land in partition shall be made in the same manner as other sales of land not susceptible of division in kind. From the proceeds of the sale there shall be first paid the costs and expenses of the action and sale of the real estate and the commuted value of any estate which is commutable and which is requested to be commuted by the owner or owners thereof. The balance of the proceeds of the sale shall be invested as authorized by this Rule and the income therefrom shall be distributed to the owners of such estate for life or for years.

Committee Note – 1981

This is substantially the same as prior Rule 96.02.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.04 | Parties

All persons in being who are vested, and all persons in being who might or would have become vested with an estate in said land if the event, condition, contingency or lapse of time upon which the same may be limited to vest in such person had happened or occurred at or immediately prior to the commencement of such action, shall be made parties plaintiff or defendant. The rule of representation of persons not in being by the person or person of the same class in estate or related in estate in respect to the land shall apply and all persons not in being shall be bound in such cases by such rule and as to and against all such persons both those in being and those not in being such sale shall carry full title to said lands. If an interest or estate in the land might vest in a person not in being who is not represented by a person in being of the same class or related in estate, the court shall appoint counsel to represent the interest of the person not in being.

Committee Note – 1981

This is substantially the same as prior Rule 96.03.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.05 | Petition – Contents

The petition shall contain the legal description of the land sought to be partitioned. It shall also set forth the names, rights and title of all persons interested therein. If a person, or the share or interest of a person is unknown, uncertain or contingent, or the ownership of the land depends upon an executory devise, or the remainder is contingent, it shall be stated in the petition.

Committee Note – 1981

This is substantially the same as prior Rules 96.05 and 96.07.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.06 | Who Shall be Made Parties

Every person having an interest in the land, whether in possession or otherwise, shall be made a party to an action in partition.

Committee Note – 1981

This is substantially the same as prior Rule 96.06.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.07 | Partition not be Made Contrary to Will

No partition or sale of land devised by any last will shall be made under this Rule 96, contrary to the intention of the testator, expressed in any such will.

Committee Note – 1981

This is substantially the same as prior Rule 96.13.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.08 | Interests of Parties to be Determined

The court shall determine the interests of the parties and order partition in kind or the sale of the land.

Committee Note – 1981

This is substantially the same as prior Rule 96.16.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.09 | Several Shares May be Set Off Together

The court may order that any number of shares be set off together in one parcel and that the residue be divided among the other parties, according to their several rights.

Committee Note – 1981

This is substantially the same as prior Rule 96.17.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.10 | When Parties Claim Adversely – How Court Shall Proceed

When parties claim the same share adversely, the court may determine the adverse claims or direct that the share be allotted, subject to the adverse claims.

Committee Note – 1981

This is substantially the same as prior Rule 96.19.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.11 | Court May Order Sale Without Appointment of Commissioners

If the court finds that partition in kind cannot be made without great prejudice to the owners an order of sale may be made without the appointment of commissioners.

Committee Note – 1981

This is substantially the same as that portion of prior Rule 96.53 which precedes the first semi-colon.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.12 | Court Shall Appoint Commissioners – When

When a judgment of partition in kind is rendered, the court shall appoint three commissioners, residents of any county in which any of the land to be divided lies, to make the partition. In case of the death, resignation, inability or refusal to act of any commissioner the court may appoint a substitute. The court may authorize the commissioners to employ surveyors.

Committee Note – 1981

This is new.

Compare: Prior Rules 96.20 and 96.21.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.13 | Compensation of Commissioners and Surveyors

The commissioners and surveyors shall receive compensation as fixed by the court, which sums shall be taxed as costs.

Committee Note – 1981

This is substantially the same as prior Rule 96.22.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1994

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.14 | Commissioners to Make Affidavit and Give Notice to Parties

The commissioners, before proceeding to the execution of their duties, shall make affidavit, before some officer qualified to administer oaths, to honestly and impartially execute the trust reposed in them, which shall be filed with their report. They shall give at least ten days' notice to the parties of the time when they will perform their duties.


(Adopted June 5, 1980, effective January 1, 1981. Amended June 1, 1993, effective January 1, 1994.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.15 | Commissioners' Report

The commissioners shall make a written report describing the land divided and the shares allotted to the parties, or that partition cannot be made without great prejudice to the owners, or that partition can be made only of a part of the land. The report shall also list the expenses incurred by the commissioners. It shall be proved or acknowledged in the same manner as deeds are required to be proved or acknowledged to entitle them to be recorded and shall be filed in the office of the clerk of the court.

Committee Note – 1981

This is substantially the same as prior Rules 96.25, 96.26, 96.28 and 96.29.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.16 | Clerk to Give Notice of Filing of Report – Exceptions to Report, When Filed

Immediately after the filing of the report of the commissioners, the clerk shall notify the parties of such filing. The notice shall be given in the manner provided by Rule 43.01, or, if this is not possible, by posting the notice in the office of the clerk of the court. The clerk shall file a certificate showing the time and manner of serving all such notices. Any party may file written exceptions to the report of the commissioners within thirty days after the service or posting of the notice. The court may, for good cause, set aside the report and appoint new commissioners or may confirm the report and order judgment thereon. The court shall allow the commissioners reasonable compensation for their services which shall be taxed as costs.


(Adopted June 5, 1980, effective January 1, 1981. Amended June 1, 1993, effective January 1, 1994.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.17 | Copy of Report and Judgment to be Recorded

The clerk of the court shall file and cause to be recorded a certified copy of the report and judgment of confirmation in each county in which any land is situated. The costs of certification and recording shall be taxed as costs.

Committee Note – 1981

This is substantially the same as prior Rule 96.32.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.18 | Court May Order Sale of Land – When

If the commissioners report to the court that partition of the land, or any portion thereof, cannot be made without great prejudice to the parties, an order of sale may be made.

Committee Note – 1981

This is new.

Compare: Prior Rule 96.34


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.19 | Order of Sale

The order shall prescribe the terms, place and who shall conduct the sale; it shall not specify the date of sale. The clerk shall deliver a certified copy of the order of sale to the sheriff or commissioner who shall conduct the sale. The sheriff or commissioner shall advertise and sell the land.

Committee Note – 1981

This is new.

Compare: Prior Rule 96.37.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.20 | Where Sale Shall be Held

If the land is located in only one county the sale of the land shall be held in that county. If the lands are located in more than one county but are contiguous, the sale of the land shall be held in any county where any part of the land is located. If the land is located in more than one county but in separate tracts, the sale or sales shall be held in the county or counties in which any of the land is located which the court designates.

Committee Note – 1981

This is new.

Compare: Prior Rule 96.37.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1994

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.21 | Notice of Sale

Notice of a sale in partition shall be published in each county in which any of the land is to be sold is located. The sheriff or commissioner shall give thirty days notice of the time and place of sale and what land is to be sold and where situated by advertisement in some newspaper printed in the county if there be one regularly published, weekly or daily, which may be designated by the plaintiffs or their attorney. If there is no such newspaper then the publication shall be in a newspaper designated by the court.


(Adopted June 5, 1980, effective January 1, 1981. Amended June 1, 1993, effective January 1, 1994.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.22 | Order of Sale Shall be Renewed – When

When an order of sale has been made and the sale has failed to take place for any cause, the court shall renew the order of sale. The clerk shall deliver a certified copy of such order to the sheriff or commissioner who shall give notice and sell the land.

Committee Note – 1981

This is substantially the same as prior Rule 96.38.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.23 | Land May be Sold in Parcels – When

Unless the court otherwise orders, the land may be sold in separate tracts or as a whole.

Committee Note – 1981

This is new.

Compare: Prior Rule 96.39.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.24 | Sheriff or Commissioner to Collect Purchase Money and Make Deed to Purchaser

The sheriff or commissioner shall collect and disburse the purchase money according to the order of the court and he shall execute and deliver the deed to the purchaser. The deed shall be acknowledged or proved in the same manner as conveyances made by the sheriff of land sold under execution. If the purchaser dies before the delivery of the deed therefor, the court shall, on proof of the fact of the purchaser's death, and the identity of the persons entitled to the property, order the sheriff to execute, acknowledge and deliver the deed to such persons.

Committee Note – 1981

This is new.

Compare: Prior Rule 96.40.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.25 | Defective Deed to be Corrected – How

When the court finds that the sheriff or commissioner has executed and delivered to the purchaser an incorrect deed in partition and that since such defective conveyance no other person has obtained adverse and intervening rights which would be prejudiced, the court may enter an order transferring the title to the land sold to the original purchaser or to any person claiming by, through or under him.

Committee Note – 1981

This is new.

Compare: Prior Rule 96.41.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.26 | Sheriff's Report – Contents

The sheriff shall report the sale to the court, with a description of the different parcels of the land sold, the names of the respective purchasers and the sale prices. He shall also file with the court a statement of all amounts received and all costs and expenses incurred in effecting the sale.

Committee Note – 1981

This is substantially the same as prior Rule 96.43.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.27 | Proceeds of Sale – How Disbursed

The court shall direct the payment by the sheriff or commissioner of the costs and expenses of the proceedings and the remainder to the parties in interest.

Committee Note – 1981

This is substantially the same as prior Rule 96.44.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.28 | Adverse Claim to Proceeds – Procedure

Funds derived from the sale of any share to which there are adverse claims shall be retained by the sheriff or commissioner subject to the order of the court.

Committee Note – 1981

This is substantially the same as prior Rule 96.45.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.29 | Proceeds of Partition Sale Subject to Debts of Estate

Upon judgment of partition in proceedings commenced under this Rule 96, where the land or any portion thereof, sought to be divided as hereinbefore directed, shall have descended to any of the parties in interest, and the court shall not be satisfied either that the estate from which the same has descended has been finally settled, and all claims against the same fully discharged, or that the personal property, or other real property not already partitioned, belonging to such estate, is more than sufficient to pay all claims and demands against the same, the order of distribution shall not apply to nor take effect upon any land allotted or the share of the proceeds of any sale adjudged to the parties whose interests shall have so descended until such estate shall have been finally settled and all claims against the same fully discharged. Until such final settlement, the interest of all parties in such land or in the proceeds of sale in cases where sale has been ordered, shall remain and be subject to the claims against the same.

Committee Note – 1981

This is substantially the same as prior Rule 96.14.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.30 | Court Shall Allow Fees, Costs and Expenses

The court shall allow a reasonable fee to the attorney instituting the action in partition and may allow a reasonable fee for any guardian ad litem appointed. The court shall also allow reasonable costs, expenses and compensation to the sheriff or commissioner. The fees, costs and expenses shall be taxed as costs.

Committee Note – 1981

This is new.

Compare: Prior Rules 96.51 and 96.59.


(Adopted June 5, 1980, effective January 1, 1981.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1994

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.31 | Bond of Commissioner Appointed to Sell Land

Any commissioner appointed to sell land shall, before acting, file with the clerk a bond, payable to the state, with such sureties as may be approved by the court, in a sum sufficient to indemnify the parties, conditioned that the commissioner will faithfully discharge the duties of office and account for and pay over, according to the order of the court, to the parties entitled thereto all such sums of money as may come to the possession of the commissioner.

Committee Note – 1981

This is substantially the same as prior Rule 96.55.


(Adopted June 5, 1980, effective January 1, 1981. Amended September 28, 1993, effective January 1, 1994.)

First Adopted: June 05, 1980

Most Recently Effective: January 01, 1981

Rule 96 | Rules of Civil Procedure | Rules Relating to Special Actions | Partition of Real and Personal Property

96.32 | Partition of Personal Property

Owners of interests in personal property in joint tenancy or tenancy in common, including estates in fee, for life or for years, may bring an action for partition in kind or by sale and division of the proceeds thereof. The procedure shall be the same, as near as may be, to that provided in this Rule 96 for partition of land.

Committee Note – 1981

This is new.

Compare: Prior Rule 96.60.


(Adopted June 5, 1980, effective January 1, 1981.)